VICTORY FOR H-4 VISA HOLDERS – CAN WORK! By Rohit Turkhud

So, finally we have it – the USCIS’ Director, Leon Rodriguez, announced on February 24, 2015 that as of May 26, 2015, the USCIS will accept and process an application for an Employment Authorization Document (EAD) from an H-4 visa holder dependent spouse. To date, an H-4 is not permitted to work in the US.

The H-4 is a visa category in our immigration laws for the dependent spouse and children of an H-1B visa holder. This regulatory change applies only to certain qualified dependent spouses.

This is a much anticipated relief-benefit by many in light of President Obama’s Executive Action/Order announced in November 2014. This benefit will be available to spouses of H-1B visa holders only, and not to the dependent children. It will also be available to certain spouses only.

Mr. Rodriguez announced that, “effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.”

Who is a qualifying spouse who can avail of this new benefit? Per the USCIS’ press release of February 24, 2015:
Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

The USCIS will begin accepting applications on May 26, 2015. No application should reach the USCIS before May 26, 2015.

Naturally, applicable fees will need to be paid to the USCIS.

Supporting documentation will need to be provided, as always.

The qualifying dependent spouse can commence work ONLY AFTER he/she receives the EAD.

This newly extended employment authorization will benefit the US economy by offering employment to qualified individuals who would not otherwise have been able to work.

Such employment authorization “will reduce the economic burdens and personal stresses [on] H-1B nonimmigrants and their families …. and facilitate their integration into American society.”

“The change should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation.”

“The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.”

The USCIS anticipates that about 179,600 individuals will benefit in the first year, followed by about 55,000 beneficiaries in subsequent years.

The USCIS has also published this amendment to the regulation in the Federal Register dated February 25, 2015.

In the Federal Register/Volume 80 No. 37/Wednesday, February 25, 2015 / Rules and Procedures, page 10285, in part C, Summary of the Major Provisions of the Regulatory Action, the USCIS has confirmed that “DHS is making additional revisions to 8 CFR 214.2(h)(9)(iv) and 8 CFR 274a.13(d) to permit H–4 dependent spouses under this rule to concurrently file an Application for Employment Authorization (Form I–765) with an Application to Extend/Change Nonimmigrant Status (Form I–539).”

The USCIS has recently (February 26, 2015 at about 2 pm) concluded a call with stakeholders expressly held for the purpose of discussing this regulatory change.
Per the USCIS:

they will issue an FAQ in the very near future to respond to many queries that were raised during the call, especially to address queries to which there were not ready answers;

the underlying Form I-140 MUST be approved, and cannot be pending to allow the dependent H-4 spouse to avail of this benefit;

if the underlying Form I-140 is “revoked”, the dependent H-4 spouse will no longer qualify to apply for this EAD benefit;

they will issue specific instructions for filing the Form I-765 Application;

there will be no Premium Processing for this EAD application;

the Form I-765 can be filed concurrently with the Form I-129 and the Form I-539 (this corroborates and extends what is already stated in the Federal Register – please see above);

this EAD application will also be controlled by the 90 days processing time line. BUT, they are yet to clearly state and explain when that 90 days period will commence;

the Form I-765 will be updated to allow for the correct qualifying selection. It will be “(c)(26)”;

the Form I-765 cannot be filed “electronically”. It will be only a “paper” filing;

the EAD’s end date will be the same end date as the H-4 visa status; and

they will revert to questions that sought clarification on the interplay between this EAD benefit and the provisions of INA, § 106 that deals with AC21.

This author acknowledges the many benefits that will flow from an expansion of this benefit to H-4 dependent spouses of being able to be employed in the US. This benefit brings the US in line with many other developed countries and will further strengthen the US’ position as the “dream destination” for most foreign workers and potential immigrants.

However, this author also wonders what, if any, maybe the fall-out from this benefit vis-à-vis the US employers. I offer some food for thought:

If the facts of a particular case permit a qualified H-1B individual to convert to an H-4 EAD visa/status, how will that impact compliance with H-1B regulations? Will employers and employees perceive a silver lining, however unintended, to this benefit?

If a qualified H-1B individual converts to an H-4 EAD visa/status, how will that impact the attrition rate at some employers?

It is true that an employed H-4 individual can and will contribute to the economy and his/her family. But will such access to employment and mobility of employment create unintended ripple effects for some employers? Will the passage of time even the playing field, and will market forces prevail?

If a qualified H-1B individual converts to an H-4 EAD visa/status what impact will that have on a pending Green Card application with that same employer, more specifically re: the employer being able to continue to prove its ability to pay the DOL determined prevailing wages? One may imagine a couple of challenging situations that may compromise the Green Card application.

Will the movement from an H-1B to an H-4, and vice versa, where such options may exist, complicate the applicability of laws and regulations which allow for recapture of time when one is not on an H-1B visa-status, or the ability to extend an H-1B beyond the normal 6 years? This refers to INA, §106 (a) and (c).